Case 8:11-cv-00485-AG -AJW Document 349 Filed 08/15/11 Page 1 of 22 Page ID #:8258

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Kim Schumann, Esq., State Bar #170942 Jeffrey P. Cunningham, Esq., State Bar #151067 Peter Cook, Esq., State Bar #232742 SCHUMANN, RALLO & ROSENBERG, LLP 3100 Bristol Street, Suite 400 Costa Mesa, CA 92626 Telephone (714) 850-0210 Facsimile (714) 850-0551 Email: pcook@srrlawfirm.com Attorneys for Defendant, ORLY TAITZ UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

LISA LIBERI; LISA M. OSTELLA; GO ) Case No. 8:11-CV-00485-AG (AJW) EXCEL GLOBAL; PHILIP J. BERG, ) Hon. Andrew Guilford 12 ESQUIRE; and THE LAW OFFICES OF ) Courtroom 10D PHILIP J. BERG, ) ) MEMORANDUM OF POINTS AND 13 Plaintiffs, ) AUTHORITIES BY DEFENDANT, ) YOSEF TAITZ, IN REPLY TO 14 vs. ) PLAINTIFFS OPPOSITION TO ) DEFENDANTS MOTION TO 15 ORLY TAITZ, a/k/a DR. ORLY TAITZ; ) DISMISS PLAINTIFFS FIRST ) AMENDED COMPLAINT 16 LAW OFFICES OF ORLY TAITZ; ORLY TAITZ, INC.; DEFEND OUR ) PURSUANT TO FRCP 12(b)(6) ) 17 FREEDOMS FOUNDATIONS, INC.; NEIL SANKEY; SANKEY ) [FILED CONCURRENTLY WITH ) MEMORANDUM OF 18 INVESTIGATIONS, INC; TODD SANKEY; THE SANKEY FIRM, INC.; ) EVIDENTIARY OBJECTIONS] 19 REED ELSEVIER, INC.; LEXISNEXIS ) GROUP, INC., a Division of Reed ) Date: August 29, 2011 10:00 a.m. 20 Elsevier, Inc.; LEXISNEXIS RISK AND ) Time: INFORMATION ANALYTICS ) Place: Courtroom 10D 21 GROUP, INC.; LEXISNEXIS SEISINT, ) INC. d/b/a ACCURINT, a Division of ) Date Action Filed: May 4, 2009 ) Discovery Cut-Off: March 5, 2012 22 Reed Elsevier, Inc.; LEXISNEXIS CHOICEPOINT, INC., a Division of ) Final Pre-Trial Conf.: May 21, 2012 June 5, 2012 23 Reed Elsevier, Inc.; LEXISNEXIS RISK ) Trial Date: SOLUTIONS, INC., a Division of Reed ) ) 24 Elsevier, Inc.; INTELIUS, INC.; ORACLE CORPORATION; ) ) 25 DAYLIGHT CHEMICAL INFORMATION SYSTEMS, INC.; ) ) 26 YOSEF TAITZ, individually, and as Owner / CEO of DAYLIGHT ) ) 27 CHEMICAL INFORMATION SYSTEMS, INC.; and DOES 1 through ) ) 28 186, inclusive, Defendants. )
11 -1DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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TO THE COURT, ALL PARTIES, AND/OR THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendant, YOSEF TAITZ (Moving Defendant), submits the following Memorandum of Points and Authorities and concurrently-filed Memorandum of Evidentiary Objections in reply to the Opposition of Plaintiffs, LISA LIBERI, LISA M. OSTELLA , PHILIP J. BERG, ESQUIRE, THE LAW OFFICES OF PHILIP J. BERG, and GO EXCEL GLOBAL (collectively Plaintiffs), to Moving Defendants Motion to dismiss Plaintiffs First Amended Complaint (FAC). Plaintiffs have improperly submitted two Opposition briefs - a six page Response and a twenty-five page Memorandum. They have also improperly submitted the five-page Declaration of Philip J. Berg, Esq. (Berg Declaration). Plaintiffs Opposition papers total thirty-six pages, far exceeding the limit prescribed by Local Rule 11-6. Moving Defendant therefore objects to Plaintiffs Opposition papers and requests that they not be considered. I. INTRODUCTION Plaintiffs Opposition is based on misrepresentations of the applicable law and the actual allegations of their FAC, and a complete failure to understand the nature of a Motion to dismiss pursuant to Federal Rules of Civil Procedure (FRCP), Rule 12(b)(6). Plaintiffs approach is encapsulated in Paragraph 2 of their Opposition Response: Defendant Yosef Taitz in his Motion to Dismiss does not deny the facts plead (sic) against him in Plaintiffs (sic) FAC. Instead, Defendant Yosef Taitz contends his Corporation, Daylight Chemical Information Systems, Inc., is liable for his action or inactions. Defendant Yosef Taitz claims all the damages and liabilities owed to Plaintiffs are the direct result of Daylight, Defendants Orly Taitz, Oracle and specifically, the Reed Defendants and Defendant Intellius. (Emphasis in original.) Representative of their entire Opposition, Plaintiffs Paragraph 2 is based on

28 misrepresentations of the contents of their FAC and Moving Parties Motion, as -2DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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1 well as their failure to understand the function and effect of a Rule 12(b)(6) Motion. 2 First, such a Motion is not a vehicle to deny the allegations of a pleading; that is 3 the function of an Answer pursuant to FRCP Rule 8(b). The function of a Rule 4 12(b)(6) Motion is to challenge the legal sufficiency of a Complaint. Moving 5 Defendant has done that by demonstrating Plaintiffs failure to plead facts 6 constituting any legally-sufficient claim for relief against him. 7

Second, Moving Defendant does not contend that his Corporation, Daylight

8 Chemical Information Systems, Inc., is liable for his action or inactions. (Where in 9 his Motion does Moving Defendant allegedly make this contention?) Moving Party 10 does not assert that any Defendant is liable for any reason. Instead, Moving 11 Defendant demonstrates Plaintiffs failure to plead that he, personally, engaged in 12 any act or omission. The gist of Plaintiffs allegations against Moving Defendant is 13 that he is somehow liable for the alleged development of computer systems by 14 Defendant, DAYLIGHT CHEMICAL INFORMATION SYSTEMS, INC. 15 (Daylight), which other Defendants allegedly used to obtain Plaintiffs private 16 information. (FAC, 178 and 180, p. 75: 3-5, 18-26, and p. 76: 4-10.) As 17 demonstrated, Moving Defendant as a matter of law is not liable for the alleged acts 18 of Daylight. Moreover, Plaintiffs fail to plead any claim to impose alter ego liability 19 against Moving Defendant. 20

Third, for the same reasons, Moving Defendant does not claim that all the

21 damages and liabilities owed to Plaintiffs are the direct result of Daylight, 22 Defendants Orly Taitz, Oracle and specifically, the Reed Defendants and Defendant 23 Intellius. (Where in his Motion does Moving Defendant allegedly make this 24 claim?) He does not claim that any damages and liabilities [are] owed to Plaintiffs 25 by any Defendant. 26

Plaintiffs in their Opposition pursue a divide and conquer strategy by

27 falsely claiming (without any supporting citation to Moving Defendants Motion) 28 that he is assigning liability to other Defendants. Moving Defendant does not do so. -3DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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PLAINTIFFS FAC SHOULD BE DISMISSED AS AGAINST MOVING DEFENDANT, YOSEF TAITZ, DUE TO THEIR VIOLATION OF THE MAY 2009 STIPULATION AND ORDER DISMISSING HIM As discussed in his Motion, Plaintiffs have violated the Stipulated Dismissal

5 Without Prejudice of Defendant Yosef Taitz and Order thereon (Exhibit A to 6 Moving Defendants Request for Judicial Notice) by naming him as a party to the 7 FAC without first, as required by that Order, applying for and obtaining leave to 8 join Moving Defendant in this action. Under such Order, Plaintiffs must establish 9 evidence sufficient to support a cognizable claim against Yosef Taitz.... Plaintiffs 10 have not attempted to make this showing. Accordingly, the FAC should be 11 dismissed with prejudice as to Moving Defendant. 12

Instead, Plaintiffs argue that the Order does not pertain to the allegations

13 plead [sic] against Mr. Taitz in Plaintiffs [sic] FAC. (Opposition Memorandum, 14 5: 21-23.) Plaintiffs ask the Court to compare the allegations in their initial 15 Complaint with those in their FAC. However, they do not provide the initial 16 Complaint to the Court with their Opposition, nor request judicial notice of it. 17

Plaintiffs argument relies on an artificial and too narrow reading of the

18 Order. Their argument is also nonsensical; no Defendant (including Moving 19 Defendant) would agree to be dismissed from a case if Plaintiffs could negate the 20 effect of the Stipulation merely by filing an amended Complaint. 21

Moreover, the requirements of the Order are simple and not dependent on a

22 variance between the initial Complaints and the FACs allegations. Its Para. 2 23 provides in relevant part: Plaintiffs were required to apply to the Court for leave to 24 join Defendant Yosef Taitz in this action upon satisfaction of all joinder rules and 25 leave of Court. Plaintiffs did not do so before naming Moving Defendant in their 26 FAC. Plaintiffs were also required to establish evidence sufficient to support a 27 cognizable claim against Yosef Taitz.... Plaintiffs did not satisfy this requirement 28 either. For these reasons alone, the FAC should be dismissed with prejudice as to -4DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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1 Moving Defendant. 2 III. 3 4 5 6

PLAINTIFFS CANNOT SUBMIT, NOR RELY ON, ANY DECLARATIONS OR OTHER MATTERS OUTSIDE THE PLEADINGS IN OPPOSING MOVING DEFENDANT, YOSEF TAITZS FRCP RULE 12(b)(6) MOTION In violation of fundamental requirements for a Rule 12(b)(6) Motion,

7 Plaintiffs submit the Berg Declaration with their Opposition. As a matter of law, the 8 Berg Declaration cannot be considered on Moving Defendants Rule 12(b)(6) 9 Motion. It is limited to the face of the FAC and matters judicially noticed. FRCP 10 Rule 12(b)(6). Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). 11 Graehling v. Village of Lombard, 58 F.3d 295, 298 (7th Cir. 1995). Moving 12 Defendant, herein and in his concurrently-filed Memorandum of Evidentiary 13 Objections, therefore objects to the Berg Declaration being considered in opposition 14 to his Motion. 15

Compounding Plaintiffs violations of requirements are their repeated

16 references to and reliance on additional extraneous matters, outside the pleadings, 17 including but not limited to the following: Defendant, ORLY TAITZs 18 website/blog, http://drorly.blogspot.com, Moving Defendants Manuals he 19 prepared for Defendant Daylights products, Moving Defendants Press Release, 20 the Declaration of Dr. Charles Edward Lincoln, III, and the Declarations of 21 Plaintiffs Liberi and Ostella.) (Opposition Memorandum, 1: 23-24; 3: 6-7, and 27; 22 11: 2-5; and 13: 16-19.) 23

None of these extraneous matters may be considered on Moving Defendants

24 Rule 12(b)(6) Motion. FRCP Rule 12(b)(6). Bell Atlantic Corp. supra, 550 U.S. at 25 p. 563. Graehling, supra, 58 F.3d at p. 298. Moving Defendant therefore objects to 26 the Court considering these matters outside the pleadings. 27 /// 28 /// -5DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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PLAINTIFFS DO NOT PLEAD ANY ALTER EGO CLAIM AGAINST MOVING DEFENDANT, YOSEF TAITZ, AND THEREFORE ARE BARRED, AS A MATTER OF LAW, FROM PURSUING HIM WITH REGARD TO THE ALLEGED LIABILITY OF DEFENDANT, DAYLIGHT CHEMICAL INFORMATION SYSTEMS, INC. Plaintiffs make the bald (and incorrect) statement that Moving Defendant is

7 liable as a matter of law for all damaging acts conducted by him through Daylight. 8 (Opposition Memorandum, 6: 25-26.) Plaintiffs then cite to numerous cases 9 involving the alter ego doctrine to conclude that Moving Defendant cannot hide 10 behind his Corporations liability. (Opposition Memorandum, 8: 16-17.) 11

Plaintiffs argument is incorrect on many levels. First, Moving Defendant as a

12 matter of law is not liable for any alleged act or omission of corporation Daylight. A 13 corporation is a legal entity separate and distinct from its stockholders, officers and 14 directors, with separate and distinct liabilities and obligations. Capon v. Monopoly 15 Game LLC (2011) 193 Cal.App.4th 344, 356. 16

Similarly, a party's status as an officer or director of a corporation does not

17 make him or her liable for the acts of the corporation. Dos Pueblos Ranch & Imp. 18 Co. v. Ellis (1937) 8 Cal.2d 617. Of these cases, Plaintiffs only discuss Capon but 19 do not attempt to distinguish it. (Opposition Memorandum, 7: 18-22.) 20

Moreover, Plaintiffs do not plead any claim to impose alter ego liability

21 against Moving Defendant. Plaintiffs lengthy discussion of the alter ego doctrine is 22 purely academic where they have no claim based on such doctrine against Moving 23 Defendant. 24

As a matter of law, Moving Defendant is not liable for any alleged act or

25 omission of corporation Daylight. Capon, supra, 193 Cal.App.4th at p. 356. For this 26 reason alone, the FAC should be dismissed with prejudice as to Moving Defendant. 27 /// 28 /// -6DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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PLAINTIFFS FIRST CAUSE OF ACTION FAILS WHERE THERE IS NO PERSONAL RIGHT OF ACTION UNDER THE FIRST AND FOURTEENTH AMENDMENTS, PLAINTIFFS HAVE FAILED TO ADEQUATELY SPECIFY WHAT, IF ANY, REASONABLE EXPECTATION OF PRIVACY HAS BEEN INVADED, AND THEY FAIL TO ALLEGE THAT DEFENDANT, YOSEF TAITZ PERSONALLY VIOLATED ANY PRIVACY RIGHTS Plaintiffs first claim for relief (cause of action) is a hopelessly confusing

9 morass of jumbled allegations failing to state any recognized claim. Its very title 10 bears this out: Willful and Intentional Intrusion Upon Liberi, Berg and Ostellas 11 Solitude, Seclusion and Private Affairs - Invasion of Privacy, Including Violations 12 of the First and Fourteenth Amendments to the U.S. Constitution; and the California 13 Constitution. (FAC, p. 78.) 14 15 16

A.

The U.S. Constitution Does Not Recognize the Right to Sue a Private Individual under the First or Fourteenth Amendments

Plaintiffs claims for invasion of privacy under the First and Fourteenth

17 Amendments of the U.S. Constitution have no legal basis. The Fourteenth 18 Amendment cannot apply to private conduct. Shelley v. Kraemer, 334 U.S. 1, 13 19 (1948). By extension, the First Amendment does not apply to private conduct either. 20 Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982). Where Plaintiffs allege only 21 private conduct, and not required governmental invasion of privacy, their first cause 22 of action under the First and Fourteenth Amendments to the U.S. Constitution must 23 fail. Plaintiffs agree that It should be noted that we do not have here the question of 24 ones privacy from government intrusion. (Opposition Memorandum, 11: 21-23.) 25 This is dispositive of Plaintiffs claim; where there is no government intrusion, 26 but only alleged private conduct, there cannot be any claim under the First and 27 Fourteenth Amendments. 28

Plaintiffs in their Opposition fail to discuss the Shelley or Rendell-Baker

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1 cases, and thus admit by their silence that their claims for invasion of privacy under 2 the First and Fourteenth Amendments cannot stand. On pages 11 and 12 of their 3 Opposition, Plaintiffs discuss the United States Supreme Courts recognition that a 4 right of personal privacy, or a guarantee of certain areas or zones of privacy, does 5 exist under the Constitution. Plaintiffs miss the point - even if there is a recognized 6 right of personal privacy against governmental intrusion under the U.S. 7 Constitution, that is irrelevant to the separate issue of whether a claim for relief (or 8 private right of action) involving only private conduct exists under the First and 9 Fourteenth Amendments. As a matter of law, there is no such claim. Shelley, supra, 10 334 U.S. at p. 13. Rendell-Baker, supra, 457 U.S. at p. 837. 11 12 13 14

B.

Plaintiffs Fail to Allege that Moving Defendant, Yosef Taitz, Personally Committed Any Act Constituting Invasion of Privacy in their Claim Based on the First and Fourteenth Amendments

Plaintiffs in their claim under the U.S. Constitution fail to allege that Moving

15 Defendant, personally, has done anything violating their privacy rights, but instead 16 that his corporation, Daylight CIS has provided technology which other 17 Defendants have used to allegedly violate privacy rights. Thus, on this basis, 18 Plaintiffs claim for invasion of privacy under the U.S. Constitution against Moving 19 Defendant must fail. 20 21 22 23 24 25 26 27 28

Plaintiffs response on this issue is: Mr. Taitz had access to Plaintiffs [sic] private data, which was maintained by the Reed Defendants and Defendant Intellius. The information was scripted by Mr. Taitz to interface back to servers designated by Mr. Taitzs [sic], including private servers [sic], all of which are in his possession. Mr. Taitz accessed Plaintiffs [sic] private data and gave it to his wife, Ms. Taitz, so she was able to carry out her threats against the Plaintiffs, including her threat to destroy Plaintiff Lisa Liberi. See the Declaration of Dr. Charles Edward Lincoln, filed July 25, 2011, appearing as Dkt No. 313, the Declaration of Liberi [Dkt No. 314] and Ostella [Dkt No. 312] filed July 25, 2011. Plaintiffs problem is that these contentions are not pled in the FAC. This is
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1 why they must rely on improper matters extraneous to the FAC, including the 2 Declarations of Mr. Lincoln and Plaintiffs LIBERI and OSTELLA. None of these 3 extraneous matters may be considered on Moving Defendants Rule 12(b)(6) 4 Motion. FRCP Rule 12(b)(6). Bell Atlantic Corp. supra, 550 U.S. at p. 563. 5 Graehling, supra, 58 F.3d at p. 298. 6

Particularly egregious is Plaintiffs contention (not pled in the FAC) that

7 Moving Defendant accessed Plaintiffs [sic] private data.... Instead, Plaintiffs (at 8 most) allege that his corporation, Daylight CIS provided technology which other 9 Defendants have used to allegedly violate privacy rights. The gravamen of Mr. 10 Lincolns Declaration is that where he contends that Moving Defendant had access 11 to Plaintiffs information, and that Orly Taitz did not have access to such 12 information, that an inference should be drawn that Moving Defendant must have 13 accessed Plaintiffs information. (Again, Mr. Lincolns Declaration may not be 14 considered. FRCP Rule 12(b)(6). Bell Atlantic Corp. supra, 550 U.S. at p. 563. 15 Graehling, supra, 58 F.3d at p. 298.) 16

Plaintiffs continue this theme in their Opposition. They begin by falsely

17 claiming that Orly Taitz in her Motion to dismiss states that she obtained Plaintiffs 18 [sic] private data, outlined above, directly from the Reed Defendants and Defendant 19 Intellius. Plaintiffs then contend: This is and was impossible as Ms. Taitz did not 20 and does not have accounts with these particular Defendants, nor did she know how 21 to utilize and work with them. Ms. Taitz could have only obtained Plaintiffs [sic] 22 private data from her husband, Mr. Taitz. This is also confirmed by Dr. Charles 23 Edward Lincoln III in his Declaration.... (Opposition Memorandum, 10: 23-28 24 and 11: 1-2; emphasis added.) 25

Where the most that Plaintiffs can do is urge this Court to indulge in their

26 unsupported inference, but still fail to plead that Moving Defendant personally 27 committed any act constituting invasion of privacy, their invasion of privacy claim 28 clearly is insufficient. -9DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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C.

That Defendant, Orly Taitz, Allegedly Disclosed and Published Plaintiffs Private Data is Irrelevant to and Does Not Establish a Claim for Invasion of Privacy Against Moving Defendant, Yosef Taitz

To mask their failure to allege that Moving Defendant personally engaged in

6 any conduct constituting invasion of privacy, Plaintiffs attempt to shift the Courts 7 focus to the alleged acts of Orly Taitz. Pages 13 and 14 of Plaintiffs Opposition are 8 devoted to listing the alleged acts of Ms. Taitz in publishing and disclosing 9 Plaintiffs private data. Plaintiffs contentions regarding Ms. Taitz are irrelevant 10 to and do not establish any claim for invasion of privacy against Moving Defendant. 11 They are at least tacit admissions of Plaintiffs failure to allege that Moving 12 Defendant, personally, engaged in any conduct constituting invasion of privacy. 13 VI. 14 15 16 17 18 19 20 21

PLAINTIFFS SECOND CAUSE OF ACTION FOR PUBLIC DISCLOSURE OF PRIVATE FACTS FAILS WHERE PLAINTIFFS DO NOT PLEAD THAT MOVING DEFENDANT, YOSEF TAITZ, COMMITTED ANY PUBLIC DISCLOSURE OF PRIVATE FACTS A. That Defendant, Orly Taitz, Allegedly Disclosed and Published Plaintiffs Private Data is Irrelevant to and Does Not Establish a Claim for Public Disclosure of Private Facts Against Moving Defendant, Yosef Taitz Plaintiffs again attempt to shift the Courts focus to the alleged acts of Orly

22 Taitz, and away from their failure to allege that Moving Defendant did anything 23 constituting the elements of this tort. Plaintiffs Opposition is again devoted to 24 listing the alleged acts of Ms. Taitz in publishing and disclosing Plaintiffs private 25 data. Plaintiffs contentions regarding Ms. Taitz are irrelevant to and do not 26 establish any claim for public disclosure of private facts against Moving Defendant. 27 They are at least tacit admissions of Plaintiffs failure to allege that Moving 28 Defendant, personally, engaged in any conduct establishing any element of this tort. -10DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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B.

That Moving Defendant Allegedly Shared Plaintiffs Information with Defendant, Orly Taitz, Does not Constitute the Essential Public Disclosure Element of a Claim for Public Disclosure of Private Facts As Against Moving Defendant

Plaintiffs state that the elements of the tort of public disclosure of private

6 facts are: (1) public disclosure, (2) of a private fact, (3) which would be offensive 7 and objectionable to the reasonable person, and (4) which is not of legitimate 8 concern. Taus v. Loftus (2007) 40 Cal.4th 683 [54 Cal.Rptr. 775]. (Opposition 9 Memorandum, 13: 4-8.) 10

As the name of this tort suggests, and as Plaintiffs acknowledge is an

11 essential element of the claim, there must be a public disclosure of private facts. 12 Porten v. University of San Francisco (1964) 64 Cal.App.3d 825, 828. Plaintiffs fail 13 to allege this essential element as against Moving Defendant. At most, Plaintiffs 14 appear to plead some type of private disclosure of their private data. 15 This clearly is insufficient to establish this element of the tort of public disclosure of 16 private facts. 17

Plaintiffs then go on to discuss the second through fourth elements of this

18 claim for relief. However, again, they only reference alleged acts of Ms. Taitz, and 19 no alleged acts of Moving Defendant. For these reasons, Plaintiffs claim for public 20 disclosure of private facts should be dismissed with prejudice as to Moving 21 Defendant. 22 VII. PLAINTIFFS THIRD CAUSE OF ACTION FOR FALSE LIGHT 23 24 25 26 27

INVASION OF PRIVACY IS INSUFFICIENT AS PLAINTIFFS FAIL TO ALLEGE THAT MOVING DEFENDANT, YOSEF TAITZ, ACTUALLY PUBLICIZED ANY FACTS LEADING TO THE ALLEGED PORTRAYAL OF PLAINTIFFS IN A FALSE LIGHT Plaintiffs claim for false light - invasion of privacy is essentially

28 superfluous, and should be dismissed in its entirety, as it merely repeats Plaintiffs -11DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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1 Eighth Cause of Action for defamation. Eisenberg v. Alameda Newspapers (1999) 2 74 Cal.App.4th 1359, 1385, fn. 13. A claim for false light defamation is in 3 substance equivalent to . . . [a] libel claim. Briscoe v. Readers Digest Assn. (1971) 4 4 Cal.3d 529, 543. The allegations in the false light cause of action provide 5 Plaintiffs no independent source of relief and, as such, the cause of action should be 6 dismissed in its entirety. 7

Plaintiffs have also failed to allege facts establishing the five elements

8 necessary for a false light cause of action, including that of publicity in the form of a 9 communication to the public in general. Kinsey v. Macur (1980) 107 Cal.App.3d 10 265, 290. Plaintiffs in their third cause of action fail to allege that Moving 11 Defendant, personally, made any disclosure or publication of facts regarding them 12 to the public in general. 13

The most that Plaintiffs contend in this regard is that Moving Defendant

14 accessed Plaintiffs [sic] private data on the Reed Defendants [sic] and Defendant 15 Intelius databases and in turn gave it to Ms. Taitz. (Opposition Memorandum, 16 16: 6-7.) Plaintiffs do not actually plead that Moving Defendant accessed Plaintiffs 17 [sic] private data.... Instead, the most that Plaintiffs can do is urge this Court to 18 indulge in their unsupported inference based on the Declaration of Mr. Lincoln that 19 Moving Defendant must have done so where (per Mr. Lincoln) Orly Taitz lacked 20 the computer skills to have acquired such information. Even if Plaintiffs had pled 21 that Moving Defendant accessed Plaintiffs [sic] private data (which they have not 22 done), this would be insufficient to establish the required element of publicity in the 23 form of a communication to the public in general. Kinsey, supra, 107 Cal.App.3d at 24 p. 290. 25

For these reasons, and additional reasons stated in Moving Defendants

26 Motion, Plaintiffs clearly have not and cannot state a sufficient claim against him 27 for false light - invasion of privacy. 28 /// -12DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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1 VIII. PLAINTIFFS FIFTH CAUSE OF ACTION FOR VIOLATION 2 3 4 5 6 7

OF CAL. CIV. CODE 1798.53 (CALIFORNIA INFORMATION PRIVACY ACT) FAILS WHERE THE FAC DOES NOT CONTAIN ALLEGATIONS THAT THE ALLEGEDLY DISCLOSED INFORMATION WAS OBTAINED FROM A GOVERNMENT AGENCY Plaintiffs Fifth Cause of Action for Willful Violation of the California

8 Information Privacy Act (IPA) Cal. Civ. Code 1798.53 fails to state a claim 9 against Moving Defendant. Civil Code 1798.53 provides, in pertinent part: Any 10 person who intentionally discloses information, not otherwise public, which they 11 know or should reasonably know was obtained from personal information 12 maintained by a state agency or from records within a system of records... 13 maintained by a federal government agency, shall be subject to a civil action.... 14 (Emphasis added.) The term "agency" is defined as "every [California] state office, 15 officer, department, division, bureau, board, commission, or other state agency." 16 Civil Code 1798.3(b). Plaintiffs Opposition is silent on this essential requirement 17 of their claim based on Civ. Code 1798.53. 18

Plaintiffs fail to allege that any Defendant (including Moving Defendant)

19 obtained any information maintained by a state agency or from records within a 20 system of records maintained by a federal government agency.... The only 21 allegation in this regard is that Plaintiff Liberi had an expectation of her residency 22 address staying confidential. Liberi did not own real estate and therefore her 23 physical address was never public. Despite this, Defendants illegally obtained 24 Liberis home address from her credit reports, disclosed and distributed it to over a 25 million individuals and businesses. (FAC, 242; emphasis added.) 26

This is not an allegation regarding information maintained by a California

27 state or federal agency. (Plaintiff Liberi claims to be a resident of New Mexico; 28 FAC, 4.) Plaintiff Liberi fails to allege that her residence address was maintained -13DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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1 by a California or federal agency. Moreover, Plaintiffs specifically allege that this 2 information was obtained... from her credit reports.... Plaintiffs do not allege that 3 credit reports are maintained by a governmental agency (they are clearly not) and it 4 is apparent that such reports do not come within the IPA. 5

The fifth cause of action is silent as to any information regarding Plaintiff

6 OSTELLAs information, including that it was obtained from any information 7 maintained by a state agency or from records within a system of records... 8 maintained by a federal government agency.... Thus, the fifth cause of action must 9 fail as to Plaintiff OSTELLA. 10

Plaintiffs admit that they have not pled this essential element. The most they

11 do is assert: Mr. Taitz intentionally intruded into Plaintiffs [sic] private affairs 12 without any knowledge or permission of the Plaintiffs, by improperly accessing the 13 data maintained on the Reed Defendants [sic] and Defendant Intelius [sic] 14 databases.... (Opposition Memorandum, 17: 8-11; emphasis added.) 15

Obtaining information from databases maintained by private companies such

16 as Reed and Intelius is obviously not information that was obtained from personal 17 information maintained by a state agency or from records within a system of 18 records maintained by a federal government agency.... as required by 19

Civil Code 1798.53. Thus, Plaintiffs Fifth Cause of Action for Willful Violation

20 of the California Information Privacy Act (IPA) Cal. Civ. Code 1798.53 must 21 fail. 22 IX. 23 24 25 26 27

PLAINTIFFS ADMIT THAT THEIR SIXTH CAUSE OF ACTION FOR VIOLATION OF CAL. CIV. CODE 1798.85 FAILS AS THERE IS NO ALLEGATION THAT MOVING DEFENDANT, YOSEF TAITZ, PUBLICLY POSTED ANY PLAINTIFFS SOCIAL SECURITY NUMBER Plaintiffs Opposition is silent as to their sixth claim for relief as against

28 Moving Defendant. Thus, they admit that his Motion should be granted, without -14DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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leave to amend, as to this claim. PLAINTIFFS EIGHTH CAUSE OF ACTION FOR DEFAMATION PER SE, SLANDER AND LIBEL PER SE FAILS DUE TO PLAINTIFFS FAILURE TO ALLEGE THAT MOVING DEFENDANT, YOSEF TAITZ, DEFAMED PLAINTIFFS IN ANY MANNER The essential elements of a cause of action for defamation are: (1) a false

2 X. 3 4 5 6 7

8 statement of fact (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 9 1716); (2) that is published (California Civil Code 45, 46); (3) of or concerning 10 plaintiff (California Code of Civil Procedure 460; Kelly v. Johnson Publishing Co. 11 (1958) 160 Cal.App.2d 718); (4) causing injury to plaintiffs reputation (Masson v. 12 New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991); and (5) malice (Newspapers, 13 Inc. v. Hepps, 475 U.S. 767, 773-75 (1986)) or fault (Gertz v. Robert Welch, Inc., 14 418 U.S. 323, 347, 349 (1974)). 15

California Civil Code 45 provides: Libel is a false and unprivileged

16 publication by writing, printing, picture, effigy, or other fixed representation to the 17 eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which 18 causes him to be shunned or avoided, or which has a tendency to injure him in his 19 occupation. California Civil Code 46 provides: Slander is a false and 20 unprivileged publication, orally uttered, and also communications by radio or any 21 mechanical or other means.... 22

Plaintiffs fail to plead that Moving Defendant, personally, published any

23 defamatory statement orally or in writing with regard to any Plaintiff. The FAC as 24 against Moving Defendant is based on Plaintiffs allegations that his corporation, 25 Daylight CIS has provided technology which other Defendants have used to 26 allegedly violate privacy rights, and that Yosef Taitz through Daylight CIS shared 27 the private information of Plaintiffs with his wife, Orly Taitz. (FAC, 77: 1-2.) 28 Plaintiffs in their Opposition (Memorandum, 19: 14-17) make the same -15DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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1 contention. These allegations cannot support Plaintiffs defamation claim where 2 Plaintiffs fail to allege the essential publication element. Thus, Plaintiffs Eighth 3 Cause of Action must fail. 4 XI. 5 6 7 8 9

PLAINTIFFS NINTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FAILS DUE TO PLAINTIFFS FAILURE TO ALLEGE ACTIONS BY MOVING DEFENDANT, YOSEF TAITZ, CONSTITUTING REQUIRED OUTRAGEOUS CONDUCT Plaintiffs IIED claim is based entirely upon their prior claims, meaning that

10 the IIED claim as to Moving Defendant is completely reliant upon his alleged 11 invasion of privacy and defamation of Plaintiffs. (FAC, 301.) As demonstrated 12 above, where Plaintiffs fail to allege that Moving Defendant, personally, engaged in 13 any actionable conduct, they have not stated any claim against him. 14

Plaintiffs in their Opposition contend that the outrageous conduct element

15 of this claim has been met by Moving Defendant retrieving private data he was not 16 privy to and sharing it with Defendant Ms. Taitz.... (Opposition Memorandum, 17 20: 6-7.) However, as discussed above, Plaintiffs do not actually plead that Moving 18 Defendant retrieved or accessed any private data. Instead, the most that 19 Plaintiffs can do is urge this Court to indulge in their unsupported inference based 20 on the Declaration of Mr. Lincoln that Moving Defendant must have done so 21 where (per Mr. Lincoln) Orly Taitz lacked the computer skills to have acquired such 22 information. 23

The allegations of Moving Defendant sharing such alleged information with

24 Orly Taitz does not rise to the level of required outrageous conduct, particularly 25 where there is no allegation actually pled in the FAC as to his intent to harm any 26 Plaintiff. The tortious conduct alleged does not rise to the level of being beyond all 27 possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in 28 a civilized community as required under the RESTATEMENT (SECOND) TORTS 46 and -16DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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1 California law. See Molko v. Holy Spirit Ass'n (1988) 46 Cal.3d 1092, 1122. Plaintiffs 2 fail to allege that Moving Defendant committed acts constituting outrageous conduct. 3 Therefore, the ninth cause of action must fail as to him. 4 XII. PLAINTIFFS ADMIT THAT THEIR FOURTEENTH CAUSE OF 5 6 7 8 9

ACTION FOR NON-COMPLIANCE WITH THE FAIR CREDIT REPORTING ACT (15 U.S.C. SECTIONS 1681b AND 1681o) FAILS TO STATE A CLAIM AGAINST MOVING DEFENDANT, YOSEF TAITZ Plaintiffs Opposition is silent as to their fourteenth claim for relief as against

10 Moving Defendant. Thus, they admit that his Motion should be granted, without 11 leave to amend, as to this claim. 12 XIII. PLAINTIFFS ADMIT THAT THEIR SEVENTEENTH CAUSE OF 13 14 15 16 17

ACTION FOR VIOLATION OF THE INFORMATION PRACTICES ACT (CALIFORNIA CIV. CODE SECTIONS 1798 ET SEQ.) FAILS TO STATE A CLAIM AGAINST MOVING DEFENDANT, YOSEF TAITZ Plaintiffs Opposition is silent as to their seventeenth claim for relief as

18 against Moving Defendant. Thus, they admit that his Motion should be granted, 19 without leave to amend, as to this claim. 20 XIV. PLAINTIFFS EIGHTEENTH CAUSE OF ACTION FOR 21 22 23 24

VIOLATION OF CAL. BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ. FAILS TO STATE A CLAIM AGAINST MOVING DEFENDANT, YOSEF TAITZ Plaintiffs claim under Californias Unfair Competition Law is based on

25 alleged violations of the [Fair Credit Reporting Act, California Credit Reporting 26 Agencies Act, California Investigative Consumer Reporting Agencies Act, and 27 California Information Practices Act].... (FAC, 391.) They allege that Moving 28 Defendants knowing failure to adopt practices in accordance with and/or to adhere -17DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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1 to these laws... [constitute] an unfair business practice.... (FAC, 392.) 2

However, Plaintiffs fail to allege any required unfair business practice by

3 Moving Defendant where, as shown in his Motion, he is not subject to the laws 4 (Fair Credit Reporting Act, etc.) on which the eighteenth cause of action is based. 5 Where he is not subject to such laws, he could not be required to adopt practices in 6 accordance with and/or to adhere to these laws.... 7

Only persons who have been injured in fact and have lost money or property

8 as a result of alleged unfair competition have standing to bring actions for relief 9 under the Unfair Competition Law. Bivens v. Gallery Corp. (2005) 134 Cal.App.4th 10 847. Cohen v. Health Net of California, Inc. (2005) 129 Cal.App.4th 841. 11

In Schulz v. Neovi Data Corp. (2005) 129 Cal.App.4th 1, it was held that a

12 consumer was not entitled to pursue his action under section 17200 against a 13 payment processing service where he had not suffered injury in fact under section 14 17204 or lost money or property as a result of alleged unfair competition by the 15 processing service because he had not used their services. Analogously, a non16 California resident cannot assert a claim under Californias Unfair Competition Law 17 where he or she merely asserts a claim for actions that occurred entirely outside 18 California. In re Nat'l Western Life Ins. Deferred Annuities Litig., 467 F. Supp. 2d 19 1071 (2006, SD Cal). 20

Plaintiffs have not stated a claim under Californias Unfair Competition Law

21 against Moving Defendant where they have not alleged any actual monetary injury 22 caused by any (non-existent) unfair business practice by Moving Defendant. For 23 example, Plaintiffs fail to allege an essential element of this claim that they have 24 used the services of (i.e., were customers of) Moving Defendant. In their 25 Opposition, Plaintiffs contend that Moving Defendants unfair business practices 26 consisted of his illegal access to Plaintiffs [sic] private data and the disclosure of 27 such to other Defendants.... (Opposition Memorandum, 22: 1-2.) As discussed 28 above, Plaintiffs do not actually plead that Moving Defendant retrieved or -18DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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1 accessed any private data. This contention (even if pled in the FAC, which it is 2 not) clearly would not be any type of business practice or unfair competition. 3

Again, Plaintiffs fail to allege the essential element of standing to bring such

4 claim. They fail to allege that they used the services of (i.e., were customers of) 5 Moving Defendant. They fail to allege that they have suffered injury or lost money 6 or property as a result of alleged unfair competition. Schulz, supra, 129 7 Cal.App.4th at p. 9. They also fail to allege any unfair business practice occurring 8 inside California affecting them. In re Nat'l Western Life Ins., supra, 467 F. Supp. 9 2d at 1075. Their eighteenth cause of action therefore must fail. 10 XV. 11 12 13 14

PLAINTIFFS NINETEENTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS FAILS TO STATE A CLAIM AGAINST MOVING DEFENDANT, YOSEF TAITZ Plaintiffs NIED claim against Moving Defendant is insufficient for the

15 reasons, stated above, why their ninth cause of action for IIED is insufficient. 16 XVI. PLAINTIFFS TWENTIETH CAUSE OF ACTION FOR RES 17 18 19 20

IPSA LOQUITOR NEGLIGENCE FAILS TO STATE A CLAIM AGAINST MOVING DEFENDANT, YOSEF TAITZ - SUCH A CAUSE OF ACTION DOES NOT EXIST Plaintiffs res ipsa loquitor negligence cause of action does not state a

21 legally cognizable claim. The doctrine of res ipsa loquitor has no application to the 22 claims (concerning alleged invasion of privacy and defamation) herein. The doctrine 23 applies to negligence action arising out of certain kinds of accidents that are so 24 likely to have been caused by defendant's negligence that one may fairly say "the 25 thing speaks for itself." The doctrine is an evidentiary rule determining whether 26 circumstantial evidence of negligence is sufficient to raise a presumption of 27 negligence regarding the accident. Cal. Evid. Code 646. Blackwell v. Hurst (1996) 28 46 Cal.App.4th 939. -19DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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Where Plaintiffs claims have nothing to do with any accident, the doctrine of

2 res ipsa loquitor cannot apply. Further, there simply is no cognizable claim for res 3 ipsa loquitor. The res ipsa loquitur doctrine is not a rule of substantive law 4 imposing liability in the absence of negligence, but is a rule of evidence giving rise 5 to an inference of negligence in certain cases. Where the res ipsa loquitur doctrine is 6 applicable, the doctrine merely provides a means by which injury may be traced to 7 negligence of the party or parties having control or management of the 8 instrumentality involved. Pacific Tel. & Tel. Co. v. City of Lodi (1943) 58 Cal.App. 9 2d 888. 10

Plaintiffs in their Opposition cite several cases regarding such doctrine, to

11 acknowledge that it provides a presumption affecting the burden of producing 12 evidence. (Opposition Memorandum, 25: 2-5.) Plaintiffs in this one limited 13 instance are correct. However, there simply is no legally-recognized cause of action 14 for res ipsa loquitor negligence and Plaintiffs fail to cite any legal authority for 15 such a claim. 16 XVII. PLAINTIFF, GO EXCEL GLOBAL, IS NOT AN EXISTING 17 18 19

BUSINESS ENTITY AND, THEREFORE, IS NOT A PROPER PLAINTIFF As demonstrated in Moving Defendants Motion, Plaintiff, GO EXCEL

20 GLOBAL (GEG), is not alleged to be an existing business entity. In fact, 21 Plaintiffs counsel stated that Go Excel Global was a legal entity when the lawsuit 22 was filed. (Correspondence attached as Exhibit B to Motion; emphasis added.) 23

Although Moving Defendants counsel has not been able to find evidence that

24 GEG has ever existed, where Plaintiffs counsel admits that GEG no longer exists, it 25 is clear that GEG does not possess legal standing to prosecute its claims herein. 26 Under California and New Jersey law (where GEG was located), a corporation no 27 longer existing, or otherwise not in good standing with the governmental body with 28 jurisdiction over it, does not have legal standing to prosecute an action. Palm Valley -20DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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1 Homeowners Assn., Inc. v. Design MTC (2000) 85 Cal.App.4th 553, 560. Higi v. 2 Elm Tree Village, 114 N.J. Super. 88, 91, 274 A.2d 845 (1971). 3

The only portion of the Opposition addressing these issues provides: Go

4 Excel Global was an existing company and still is without any customers or clients. 5 (Opposition Memorandum, 6: 22-23.) This is a further admission that GEG was 6 a business entity, but no longer is such. If GEG continues to be a business entity 7 with active or good standing with its home state (New Jersey), it would be a 8 simple matter for Plaintiffs to provide proof of same (such as a certificate from the 9 New Jersey Department of Corporations or its equivalent) and to seek judicial 10 notice of that proof. Plaintiffs failure to take this simple action is at least a tacit 11 admission that GEG, which per its counsel was a legal entity when the lawsuit was 12 filed, no longer is an entity in good standing and thus cannot be a proper Plaintiff. 13 XVIII. PLAINTIFFS CONTENTIONS THAT THEY SHOULD BE 14 15 16 17

ALLOWED TO CONDUCT DISCOVERY, INCLUDING AS TO SOURCE CODES, ARE IRRELEVANT TO THE SUFFICIENCY OF THEIR FAC Rather than discuss whether their claims are sufficiently pled, Plaintiffs

18 Opposition repeatedly states that they should be allowed to conduct discovery 19 including as to source codes utilized by Defendants Mr. Taitz, Daylight and 20 Oracle.... (Opposition Memorandum, 25: 6-13.) This contention is irrelevant to 21 the whether the FAC is legally sufficient. It is not. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// -21DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

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1 XIX. CONCLUSION 2

For the reasons stated herein, Moving Defendant YOSEF TAITZ, respectfully

3 requests that he be dismissed with prejudice pursuant to FRCP Rule 12(b)(6). 4 5 DATED: August 15, 2011 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -22DEFENDANT, YOSEF TAITZS REPLY MPA RE: MOTION TO DISMISS PURSUANT TO FRCP 12(b)(6)

SCHUMANN, RALLO & ROSENBERG, LLP

By:

/s/ - Jeffrey P. Cunningham ____________________________ Kim Schumann, Esq. Jeffrey P. Cunningham, Esq. Peter Cook Esq. Attorneys for Defendant, YOSEF TAITZ